Handling the State-of-Mind Hearsay Exception in a Criminal Trial: Guidance From the Second Department
Joseph D. Nohavicka for New York Law Journal
The Second Department recently decided a case dealing with what is undeniably the bane of the criminal defense bar: handling testimony of a law enforcement officer, who is recounting statements made to them by a non-testifying accomplice directly implicating the criminal defendant on trial. The case is People v. Lockley, 2021 NY Slip Op 06192 (2d Dept. Nov. 10, 2021) (Chambers, J.)).
In Lockley, the jury convicted the defendant of felony murder and other related offenses. The Second Department reversed and ordered a new trial.
Here is what happened at the trial in Supreme Court, Queens County: In their opening statement, the People announced that the jury “will hear how after being confronted with the fact that a male Indian who had been spoken to by the police and said he’s the one who did this, you will hear what Lockley’s reaction was to that.”
Direct Examination of the Detective
A detective then testified that he confronted Lockley with what he “had learned from several sources,” including that Lockley and others had gone to the victim’s residence prior to the night of the murder and had approached him while he was outside smoking a cigarette, but then left the scene after the victim retreated inside the house.
The detective further told Lockley that he “knew” that Lockley had gone back to the scene with a man named Andy Dabydeen on the night of the murder, that Lockley pulled out a gun and forced the victim into the house while Dabydeen restrained a girl outside, that a shot rang out shortly thereafter, and that Dabydeen brought the girl into the house and the victim was then lying on the floor. After Lockley continued to deny any involvement in the murder, the detective confronted him by saying that “Andy had told us what had happened.”
The detective further testified that, shortly thereafter, upon returning from the bathroom, Lockley reacted to that information by stating that he could not believe that Dabydeen had “snitched” on Lockley.
Defense counsel did not object to the detective’s testimony. On cross-examination, defense counsel asked the detective whether Dabydeen had denied being present at the victim’s home on the day of the shooting. The People’s objection was sustained. The People rested.
At that point, the defendant objected to the People’s failure to call Dabydeen, arguing that he had the right to confront his accuser—even specifically citing Crawford v. Washington, 541 U.S. 36. The Supreme Court denied the defendant’s application by telling him that the People “produce who they want to produce and … call who they want to call.”
Dabydeen’s statement was the only direct evidence adduced at trial linking Lockley to the murder.
Closing Argument
Looping back to their opening statement, the prosecutor re-emphasized the detective’s testimony that Dabydeen had told the police “that Lockley was the one that went in and shot this guy,” and that Lockley reacted by saying he could not believe Dabydeen had “snitched” on him.
The jury found Lockley guilty of murder in the second degree (two counts), burglary in the first degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree. Sentence was imposed. That was in 2014.
The Appeal
Was the objection by defense counsel made after the People rested? The Appellate Division found that the defendant’s objection was sufficiently specific to draw the trial’s attention to the Sixth Amendment Confrontation Clause problems attendant to the People’s use, as part of their case-in-chief, of Dabydeen’s out-of-court testimonial statement directly implicating Lockley in the murder.
The court stated that an “accuser who makes a formal statement to government officers bears testimony as opposed to a person who makes a casual remark to an acquaintance does not.” With that backdrop, the court determined that “there was a clear evidentiary basis in the record for the defendant’s invocation of Crawford—even through the trial court failed to see it.
Back-peddling slightly, the court then stated that “[i]n any event, to the extent the specific Crawford claim advanced by the defendant on appeal was not fully preserved, we nevertheless reach it in the interest of justice.
The People argued that contended that there was no proof that Dabydeen actually made any statement to the detective and suggested that the detective made up the statement out of whole cloth as a ruse to confront Lockley and get him to confess.
That contention was rejected, as it was never denied at trial that Dabydeen had made the statement. In fact, the People emphasized Dabydeen’s statement both in their opening statement as well as in summation.
The People then argued that Dabydeen’s statement was never introduced for its truth, but only to illustrate the Lockley’s reaction to it.
That argument was also rejected noting that the statement was used during the People’s opening and closing highlighting the hearsay testimony without even seeking an instruction telling jurors not to consider Dabydeen’s statement for its truth.
Understanding the need for giving some context to Lockley’s statement that Dabydeen had “snitched” on him, the court emphasized that “the People could have done so without disclosing the substance of Dabydeen’s incriminating statement.”
The court specifically pointed out that it was not deciding whether a curative instruction in this case would have been sufficient to avoid a Crawford error under the circumstances presented and expressed no views on that question.
Conclusion: Lockley gets a new trial.
Practitioner’s Bullets
- When the hearsay statement is on its way in, object immediately. The subject statements People v. Lockley were rank and constitutionally violative hearsay. The fact that a “state of mind” counterargument exists does not alter the character of the statement being testimonial and being used to prove the truth of the matter asserted; and, therefore, violative of the defendant’s Confrontation Clause protections.
- Point out that the statement can be pared down so that jury is not exposed to the inculpatory information contained in the whole statement. If the statement is not offered for its truth and is offered merely to show that the words were uttered or the conduct was engaged in, the issue of admissibility then becomes whether it is relevant and whether its probative value is substantially outweighed by the potential of unfair prejudice to the party against whom the statement is admissible. (See Guide to NY Evid. Rule 4.07.)
- You will have to be prepared to distinguish People v. Reynoso, 2 N.Y.3d 820 (2004), where the Court of Appeals held that there was no merit to defendant’s claim that his constitutional right to confront witnesses was violated when the trial court allowed the People to elicit a statement that a non-testifying codefendant had made to a detective. The court noted that “[t]he statement was admitted not to establish the truth of the matter asserted, but rather to show the detective’s state of mind.” The Reynoso court specifically noted that testimonial statements are not barred so long as they are not establishing the truth of the matter asserted.
- If the trial judge responds to the objection that the issue can be resolved by cross-examining the law enforcement witness, you can argue that cross-examination of the officer to whom the alleged statement was made does not substitute for confrontation. If the judge insists that the statements are non-hearsay, it should be argued that they are sufficiently prejudicial so that the jury would be unable to consider them only for limited purposes and would consider them for their truth in violation of the Confrontation Clause.
- If the judge allows the statements in, subject to a curative instruction, you should argue that an instruction will not be sufficient to provide the defendant with the Constitutional protection they are entitled to. Also advance the holding of Bruton v. United States, the Supreme Court identified an exception to the assumption” that jurors follow limiting instructions. In Bruton v. United States, 391 U.S. 123, 124, (1968), the defendant Bruton and his codefendant were tried jointly for armed postal robbery. A postal inspector testified that the codefendant confessed to him that Bruton and the codefendant committed the robbery together. Id. The codefendant did not take the stand, so he could not be cross-examined. Id. at 128. The district court provided a limiting instruction to the jury that “although [the codefendant’s] confession was competent evidence against [the codefendant] it was inadmissible hearsay against [Bruton] and therefore had to be disregarded in determining [Bruton’s] guilt or innocence.” Id. at 125. The Supreme Court reversed Bruton’s conviction, holding that because his codefendant was not subject to cross examination and “because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton’s] guilt,” admission of the codefendant’s confession in front of Bruton’s jury violated Bruton’s “right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” Id. at 126.
- If the judge is not convinced by the legal authority, argue that simply instructing jurors to disregard the inculpatory statements will not accomplish the task. In 1959, the Nebraska Law Review published the results of an experiment on jury instructions conducted by researchers with the University of Chicago Jury Project. They had “discovered that when subjects in simulated jury trials were admonished to disregard evidence of insurance, they did the exact opposite of what they were told. The admonition did not reduce the impact of this inadmissible evidence; in fact, it increased the prejudicial effect.” Broeder, The University of Chicago Jury Project, 38 L. Rev. 744 (1959). In Nash v. United States, 54 F.2d 1006 (2d Cir.), cert. denied, 285 U.S. 556 (1932), Judge Learned Hand stated that the use of limiting instructions is a “recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else [sic].”
- If the objection is still overruled, and the judge does not mention a curative instruction you have to request a curative instruction. The fact that an instruction is given during the preliminary charge about statements not admitted for its truth (e.g., CJI2d), those instructions will be long forgotten by the time the statements are actually made during the trial. The instruction must be given again. Although the echo effect of mentioning the statement that is to be disregarded is problematic, you have to protect the record.
Conclusion
The Lockley decision is a great reminder that when your hearsay objection is met with a state-of-mind counter, that’s not the end of it: Keep track of how often the targeted statement is uttered by the declarant and by the proponent. Object when it is being attempted to be introduced into the trial record; object at the close of the People’s; and object at the end of the defense’s case-in-chief. Keep pressing and protect your record.